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Law professor writes Supreme Court brief for copyright dispute

July 16, 2012

DETROIT (July 16, 2012) – Twenty-five law professors from universities across the country have signed on to an amicus brief written by Assistant Professor Aaron Perzanowski from Wayne State University Law School and filed with the U.S. Supreme Court in a copyright dispute coming before the court in October.

“This group of law professors came together to offer the court their expertise on the proper interpretation of the law in this case,” Perzanowski said.

He, like the other 24 professors represented by the brief, is an expert on copyright and other issues of intellectual property. The case, Kirtsaeng v. John Wiley & Sons, will hinge on the Supreme Court’s interpretation of five words in the Copyright Act.

The case involves Supap Kirtsaeng, a mathematics doctoral student in California accused of violating publisher John Wiley & Sons’ copyrights when he imported and sold the firm’s textbooks made outside the United States without the firm’s permission.

Kirtsaeng had family members overseas buy and ship him foreign editions of scientific textbooks printed by Wiley Asia, and then resold them on eBay for a profit. The publisher sued for copyright infringement, and was subsequently awarded $600,000 in damages by the U.S. District Court for the Southern District of New York.

The 2nd U.S. Circuit Court of Appeals, in a ruling of first impression, upheld the lower court in a 2-1 ruling last year. The appeals court ruled that the right of “first sale” in the Copyright Act, which gives the owner of a “lawfully made” copy the right to sell it, loan it or give it away without the copyright owner’s authority, applies only to products made in the United States.

“Our brief argues for a geographically neutral interpretation of the first sale doctrine that does not turn on the country of manufacture,” Perzanowksi said. “Instead, we suggest that well over a century of case law, endorsed on multiple occasions by Congress, suggests that the first sale doctrine turns solely on the transfer of title from the copyright holder or its licensee to a new owner.

“If the 2nd Circuit’s ruling stands, it will give companies that make products that incorporate copyrighted works — not just books and movies, but electronics makers and even car manufacturers — very strong incentives to move manufacturing overseas. If those products are not made in the U.S., companies will be able to control their resale on the used market.”

The issue revolves around an “ambiguous phrase” in the first sale doctrine of the Copyright Act, — “…lawfully made under this title.”
Does that phrase mean that something such as a textbook that is “lawfully made” can only have been manufactured in the United States, or does it apply also to foreign-made copies?

“The lower courts have struggled with this issue because Congress, frankly, did a suboptimal job of drafting the language of the Copyright Act,” Perzanowski said. “And copyright holders have very strong incentives to prevent imports so that they can maintain territorial price discrimination schemes. In recent years, courts have been increasingly willing to find in favor of copyright holders at the expense of consumers, unfortunately.”

The law professors’ 38-page brief, penned by Perzanowski and Professor Jason Schultz of the University of California Berkeley School of Law, argues that “Congress did not intend to break from traditional principles of law, discriminate against goods made abroad, and thereby produce no end of absurd and untenable results for ordinary consumers of imported goods (who may not even know or have any way of reasonably knowing where a copy was made or first sold).”

The brief further states: “If the court of appeals’ interpretation were to stand, museums and galleries across the country would be forced to negotiate copyright licenses to display foreign-made works they have purchased.”

Perzanowski and Schultz have teamed up before. The two “have been writing law review articles on related issues over the past couple of years,” the Wayne Law professor said. “So we decided that we were in a good position to draft a brief that reflected the prevailing view of legal academics on this issue. This issue has been making its way through the courts over a number of years. In fact, the Supreme Court considered a nearly identical question last term in a case that was affirmed without an opinion after a 4-4 tie among the justices. Justice Kagan recused herself on that case.”

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